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Emerllahu v. Pactiv, LLC

United States District Court, Second Circuit

October 30, 2013

PACTIV, LLC, Defendant.


MICHAEL A. TELESCA, District Judge.


Plaintiff, Abdurrahman Emerllahu ("Plaintiff"), brings this action pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12201 et seq. ("ADA"), and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 seq. ("NYSHRL"), alleging that he was subjected to disability discrimination, retaliation and an impermissible medical inquiry by his employer, Pactiv, LLC ("Defendant" or "Pactiv"). (Docket No. 1.) Defendant moves for summary judgment contending that Plaintiff has not established a prima facie case of discrimination, retaliation or a violation of the ADA's medical inquiry provisions. (Docket No. 14.) Plaintiff opposes the motion contending that there are material issues of fact for trial. (Docket No. 17.) For the reasons discussed herein, Defendant's motion for summary judgment is granted and the complaint is dismissed in its entirety.


The following facts are taken from the parties' submissions pursuant to Local Rule 56 (a) and the Court's review of the entire record. (Docket Nos. 14, 17.) Plaintiff began working at Pactiv as a packer in June 2001. Plaintiff's supervisor was William Ambrose from January 2008 through October 2009. During the time that Ambrose was Plaintiff's supervisor, Plaintiff was called into Ambrose's office on several occasions. Plaintiff states that he does not know why he was called into Ambrose's office. Ambrose testified that he was performing corrective counseling for, inter alia, complaints of Plaintiff inappropriately touching a coworker and several incidents of insubordination. Ambrose Dep. pp. 21-26. These meetings are documented in Plaintiff's file. Harradine Dec. Exhibit 2-3, Docket No. 14-2.

On October 7, 2009, Plaintiff was called to Ambrose's office and placed on a three day suspension. Defendant asserts that Plaintiff was suspended for insubordination. Plaintiff contests this fact stating that he was "told to go home because of an alleged incident with one of his female co-workers which [he] unequivocally denied." Pl. Response to Def. Local Rule 56(a) Statement at ¶9. When Plaintiff refused to leave, an Ontario County Sheriff's Deputy and a Canandaigua Police Officer were called to escort Plaintiff off of the premises. The law enforcement officers forcibly removed a knife from the Plaintiff's possession. Although the officers were apparently not aware, the knife had been issued to Plaintiff by Pactiv to perform his duties as a packer. Plaintiff was then escorted off the premises by the officers. Plaintiff's wrists and forearms were injured during the encounter.

The next day, Plaintiff entered the Pactiv premises using his wife's security card. He went to Pactiv's onsite medical office to seek medical treatment for his wrist and forearms. Pactiv's onsite physician examined Plaintiff and issued working restrictions and requested an X-ray of his left wrist and hand. On October 12, 2009, Plaintiff saw his family physician and requested a note to be excused from work that day due to left wrist pain.

Plaintiff returned to work on October 23, 2009 and was reassigned to a new department at the request of his brother. By November 3, 2009, Plaintiff testified that he "had to go to the doctor because [he] was not able to [work]" because of his arm and wrist pain. Emerllahu Dep. pg. 101. Plaintiff's team leader saw that he was not able to work and called the Human Resources manager, Tom Rankin. Id . Rankin told Plaintiff to go to the Pactiv doctor. Plaintiff now contends Pactiv unlawfully required him to obtain a "gratuitous medical examination" by the Pactiv onsite doctor based on the November 3, 2009 examination.

Although Plaintiff testified that he was not able to work at that time and that he had to see the doctor, he now asserts that he "was able to perform the essential functions of his job with reasonable accommodations." Emerllahu Dec. at ¶ 36. He contends that Pactiv did not attempt to find a reasonable accommodation that would allow him to work. Plaintiff did not request a specific accommodation from Pactiv, but asked that they provide him with the physical therapy prescribed by his doctor. Plaintiff has not provided any evidence of a reasonable accommodation that would allow him to perform the tasks of a packer nor has he offered evidence of his ability to perform the essential tasks of his job with or without an accommodation other than the statement in his affidavit which directly contradicts his prior deposition testimony. Cf. Emerllahu Dec. at ¶ 36 and Emerllahu Dep. at pg. 100-104, 117-118.

Plaintiff sought medical treatment from an orthopedist, Dr. Banwar, on November 5, 2009. Dr. Banwar prohibited Plaintiff from working until further notice and prescribed physical therapy. Plaintiff thereafter requested leave under the Family Medical Leave Act and filed a claim for Workers' Compensation. Workers' Compensation denied his claim, finding that his injuries were not sustained in the course of employment. Plaintiff applied for and now receives Social Security Disability payments. Plaintiff has not returned to work at Pactiv since November 2009. Plaintiff testified that he is not able to return to work because of his injuries. Emerllahu Dep. at pg. 117-118.


Pursuant to Rule 56, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(a). Once the movant has met this burden, the burden shifts to the nonmovant who must "come forward with evidence to allow a reasonable jury to find in his favor" on each of the elements of his prima facie case. See Lizardo v. Denny's, Inc. , 270 F.3d 94, 101 (2d Cir.2001); Celotex Corp. v. Catrett , 477 U.S. 317, 325-27 (1986). The court must draw all factual inferences, and view the factual assertions in materials such as affidavits, exhibits, and depositions in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986); Celotex Corp. , 477 U.S. at 322. However, a nonmovant benefits from such factual inferences "only if there is a genuine' dispute as to those facts." See Scott v. Harris , 550 U.S. 372, 127 S.Ct. 1769, 1776 (2007).

The law is well established that "conclusory statements, conjecture, or speculation" are insufficient to defeat a motion for summary judgment. See Kulak v. City of New York , 88 F.3d 63, 71 (2d Cir. 1996). The nonmovant cannot survive summary judgment simply by proffering "some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986), or presenting evidence that "is merely colorable, or is not significantly probative." See Savino v. City of New York , 331 F.3d 63, 71 (2d Cir.2003) (quoting Anderson , 477 U.S. at 249-50(citation omitted)). Rather, he must "set out specific ...

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